Stanton v Callaghan

An expert witness is immune from suit for evidence given at trial and for a report adopted or incorporated in that evidence. The protection cannot be circumvented by suing on the report. It does not ordinarily protect an expert retained to advise a client on the merits merely because litigation is contemplated and the expert may testify. Pre-trial immunity may nevertheless be justified where the work is closely connected with the conduct of the prospective trial. A joint meeting and statement designed to narrow issues can attract immunity, including concessions departing from earlier advice, because frank expert discussion serves orderly trial management. At strike-out stage, negligent professional judgment is assumed capable of proof, but the advice must fall outside the range of reasonable professional judgment.

The plaintiffs, former owners of a subsiding property, brought proceedings against their retained structural expert and associated firms. The claim alleged negligence and breach of retainer in advising that a cheaper remedial scheme was viable, in agreeing that scheme with the insurers’ expert, and in failing to remain available before trial.

The Master refused to strike out the claim. Mr Ronald Walker QC, sitting in the Queen’s Bench Division, dismissed the defendants’ appeal. The Court of Appeal considered whether the pleaded breaches were capable of constituting breaches of the retainer and whether witness immunity protected advice, a joint expert statement and a report prepared before a trial which never occurred.

The appeal was allowed. The action was ordered to be struck out.

1. At a strike-out stage, the court assumed that the allegation that the proposed remedial scheme was unviable, and that the expert’s contrary opinion resulted from negligence, could be proved. Negligence required conduct outside the range of reasonable professional judgment.
2. The allegations that the expert had exceeded or acted inconsistently with his instructions were untenable. His instructions were to provide technical advice in support of the claim and to meet the opposing expert with a view to agreeing as much as possible. Agreeing the matters in the joint statement, including an alternative remedy which took account of the insurers’ position on betterment, was within those instructions. No further authority from the clients or their solicitors was required.
3. The immunity principles in Watson v McEwen [1905] AC 481, Marrinan v Vibart [1963] 1 QB 234, Saif Ali v Sydney Mitchell & Co [1980] AC 198 and Palmer v Durnford Ford [1992] 1 QB 483 distinguished between protected participation in the preparation and conduct of a trial and ordinary advice on the merits.
4. Where an expert’s report followed a meeting with the opposing expert and incorporated matters agreed there, public policy required immunity so that experts could make proper concessions without fear of proceedings by their clients. The immunity therefore covered the alleged negligence in agreeing the viability of the gap solution and incorporating that agreement in the report.
5. The allegation concerning the expert’s holiday was misconceived. Once the clients knew his views, they could accept his advice or instruct another expert. A joint statement could be put to either expert if that expert later sought to depart from it, although the court left open the status of such a statement where no expert gave evidence.

Otton LJ concurred, stressing the expert’s overriding duty to assist the court. Nourse LJ concurred but doubted whether a principal-purpose test would always be correct; that issue did not arise on the facts.

1. Court of Appeal (Civil Division): allowed the defendants’ appeal and ordered the action struck out, with the stated costs directions.
2. Queen’s Bench Division: on 10 September 1997, Mr Ronald Walker QC dismissed the defendants’ appeal from the Master’s refusal to strike out the claim.
3. Master Murray: on 11 July 1997, refused the defendants’ strike-out application and granted leave to amend.